Opinion
24-0069
03-27-2024
IN THE INTEREST OF K.R., Minor Child, D.R., Father, Appellant.
Sonia M. Elossais of Carr Law Firm, P.L.C., Des Moines, for appellant father. Brenna Bird, Attorney General, and Tamara Knight, Assistant Attorney General, for appellee State. Shireen Carter, Norwalk, attorney and guardian ad litem for minor child.
Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, Judge.
A father appeals the termination of his parental rights to his child.
Sonia M. Elossais of Carr Law Firm, P.L.C., Des Moines, for appellant father.
Brenna Bird, Attorney General, and Tamara Knight, Assistant Attorney General, for appellee State.
Shireen Carter, Norwalk, attorney and guardian ad litem for minor child.
Considered by Bower, C.J., and Greer and Chicchelly, JJ.
CHICCHELLY, JUDGE.
A father appeals the termination of his parental rights to his child, K.R., born in 2022. He argues the grounds for termination have not been met, termination is not in the best interests of the child, and we should decline to terminate based on a permissive exception. Upon our review, we affirm.
I. Background Facts and Proceedings.
The Iowa Department of Health and Human Services (HHS) became involved with K.R. at birth when his umbilical cord tested positive for marijuana. During a child abuse assessment, the parents admitted to engaging in domestic violence and illegal substance use regularly. The father also claimed K.R. had not eaten in two days. The juvenile court ordered the removal of K.R. from the parents' custody due to concerns about the parents' substance use, mental health, and domestic violence.
When HHS arrived at the home to remove K.R., "[t]he apartment was filled with smoke and smelled strongly of marijuana." Also, "a large amount of cash on the counter" was observed, and the father shoved pill bottles and other unknown items into drawers. He stated, "I don't do any drugs other than what you can smell in the air right now." HHS noted that the father "appeared agitated" and was "pacing around" the apartment. After leaving the apartment with K.R., HHS had concerns about domestic violence based on the father's behaviors, history, and because he was "angry towards [the mother] for not telling him that [HHS] was coming today." There were also concerns about the father selling drugs out of the home based on HHS observations at the time of removal and allegations from the mother.
The Department's primary concerns regarded the parents' substance use. Both K.R. and the father were tested for substances; K.R. tested positive for methamphetamine and marijuana, and the father tested positive for marijuana. The father posted a Facebook Live "of himself rolling and smoking blunts" and another video with a bong in the background on the kitchen counter while he held K.R. He also told HHS, "I'm not going to stop smoking weed for nobody, absolutely nobody."
The social media website, Facebook, allows users to create a "live" webcast, which can be viewed temporarily by others.
The Department also had additional concerns about the parents' mental health and domestic violence. The father had "an extensive history of domestic violence," including multiple convictions across two states. There were allegations that "[the father] has physically assaulted [the mother] multiple times while their child, [K.R.] has been present in the home." The father reported to HHS that "he does not have time for evaluations and mental health stuff" and has "'anger issues' and sometimes 'hands get put on her.'" For these reasons, HHS requested the father participate in substance-use, mental-health, and domestic-violence programming. But the father declined all services except an occasional visit with K.R.
In February 2023, K.R. was adjudicated a Child in Need of Assistance. The father did not show up for the hearing. Two weeks later, he texted HHS:
I told my attorney I don't want no parts in this . . . If [the mother] can get our son back then I'm leaving it up to her if you guys terminate my rights then oh so be it . . . I got too much on my plate to be doing these extra curricular activities . . . I'm moving back to [Georgia] in a month . . . And I'm not taking nothing here in Iowa with
me . . . So whatever [HHS] and the judge have going on Please leave me out of it . . .
The father had one visit with K.R. in mid-February, where he showed up emitting "a strong THC smell." But by March, the father had left Iowa and moved back to Georgia. He declined all contact with HHS, and his attorney withdrew representation based on his decision not to participate in the proceedings.
In August 2023, the State petitioned to terminate the father and mother's parental rights to K.R. The juvenile court located the father at the Houston County Detention Center in Georgia and allowed the State to serve him by mail. The termination hearing was originally scheduled for September 12 but due to an error in the mailing address, the father was not properly served in a timely manner and the hearing was continued to October 6. Two days before the termination hearing, the father changed his mind and expressed his desire to participate in the proceedings. His attorney was re-appointed, and the hearing was continued again to later that same day due to a scheduling conflict. But the father moved to continue the termination hearing a third time due to his incarceration. The juvenile court denied the motion and the hearing was held as scheduled the afternoon of October 6. The father participated by phone. After the termination hearing, the juvenile court terminated the parent's parental rights to K.R., and the father appeals.
The mother's parental rights to K.R. were also terminated, but she does not appeal.
II. Review.
Our review of termination proceedings is de novo. In re B.H.A., 938 N.W.2d 227, 233 (Iowa 2020). "We are not bound by the juvenile court's findings of fact, but we do give them weight, especially in assessing the credibility of witnesses." In re A.S., 906 N.W.2d 467, 472 (Iowa 2018) (citation omitted).
III. Discussion.
When reviewing termination-of-parental-rights proceedings, we use a three-step analysis. Id. We consider whether: (1) statutory grounds for termination have been established, (2) termination is in the best interests of the child, and (3) we should exercise permissive exceptions to decline termination. Id. at 472-73. But our primary concern is always the best interests of the child. In re L.T., 924 N.W.2d 521, 529 (Iowa 2019).
A. Statutory Grounds for Termination.
The juvenile court terminated the father's parental rights under section 232.116(1)(b), (e), and (h). When a parent's rights are terminated on more than one ground, we may affirm on any one ground supported by the record. See In re A.B., 815 N.W.2d 764, 774 (Iowa 2012); accord In re D.W., 791 N.W.2d 703, 707 (Iowa 2010). We therefore confine our analysis to section 232.116(1)(h).
The court may terminate parental rights under section 232.116(1)(h) if it finds all of the following:
1. The child is three years of age or younger.
2. The child has been adjudicated a child in need of assistance pursuant to section 232.96.
3. The child has been removed from the physical custody of the child's parents for at least six months of the last twelve months, or for the last six consecutive months and any trial period at home has been less than thirty days.
4. There is clear and convincing evidence that the child cannot be returned to the custody of the child's parents as provided in section 232.102 at the present time.Iowa Code § 232.116(1)(h). The father only challenges the fourth element: whether the child could be returned to the parent's care at the time of termination. See Iowa Code § 232.116(1)(h)(4). He argues that because he believed K.R. would not return to his custody due to him having open warrants in another state, and because he has three other children to whom he maintains his parental rights in Georgia, the State did not meet its burden. See In re W.M., 957 N.W.2d 305, 312 (Iowa 2021) (requiring the State to establish the grounds for termination by clear and convincing evidence). But his arguments have no relevance to whether K.R. could be returned to his father's care.
The father also makes the vague contention that the State failed to make reasonable efforts to return the child to his custody. See In re L.M., 904 N.W.2d 835, 839 (Iowa 2017) (requiring the State to make "reasonable efforts as part of its ultimate proof the child cannot be safely returned to the care of a parent" (citation omitted)). But because the father provided inadequate argument, we find this issue waived. See Iowa R. App. P. 6.903(2)(g)(3) (requiring a party to develop adequate argument to prevent "waiver of that issue"); In re E.W., No. 22-0647, 2022 WL 2347196, at *2 (Iowa Ct. App. June 29, 2022) (finding an issue waived when the parent failed to develop a supporting argument).
Clear and convincing evidence shows that K.R. could not be returned to his father's custody at the time of the termination hearing. See D.W., 791 N.W.2d at 707 (interpreting "at the present time" to mean "the time of the termination hearing"). At the time of the termination, the father was incarcerated in Georgia and testified that he would be released November 11. He had also not addressed any of HHS's concerns regarding substance use, mental health, and domestic violence. For months, the father refused services and communications with HHS, and he had not maintained contact with K.R to work towards reunification. Because the father's incarceration and lack of participation in services prevented him from caring for K.R. at the time of the termination, this ground has been met.
There is a discrepancy whether the father was scheduled to be released October 11 or November 11. But because the father was incarcerated at the time of the termination hearing, this distinction is immaterial to our analysis.
B. Best Interests of the Child.
The father next argues that termination was not in the best interests of the child. In considering this issue, we "give primary consideration to the child's safety, to the best placement for furthering the long-term nurturing and growth of the child, and to the physical, mental, and emotional condition and needs of the child." Iowa Code § 232.116(2). The "defining elements" of our analysis are the child's safety and "need for a permanent home." In re H.S., 805 N.W.2d 737, 748 (Iowa 2011). We consider the parent's past performance because it "may be indicative of the quality of the future care that parent is capable of providing." A.B., 815 N.W.2d at 778 (citation omitted).
We find that termination is in the best interests of K.R. "It is well-settled law that we cannot deprive a child of permanency after the State has proved a ground for termination under section 232.116(1) by hoping someday a parent will learn to be a parent and be able to provide a stable home for the child." In re A.M., 843 N.W.2d 100, 113 (Iowa 2014) (citation omitted). The father's unwillingness to participate in services does not convince us that he can provide a stable home for K.R. in the future. He has not addressed the problems that initiated the termination; in fact, at trial, he did not even acknowledge his own part in the removal, placing all the blame on the mother. Furthermore, the father maintained throughout the proceedings that he wanted "no parts in this" and moved out-of-state. It was not until mere weeks before termination that he began to show interest in reunification with K.R. This is too late. See In re C.B., 611 N.W.2d 489, 495 (Iowa 2000) ("A parent cannot wait until the eve of termination, after the statutory time periods for reunification have expired, to begin to express an interest in parenting.").
C. Permissive Exceptions.
Finally, the father asks us to decline to terminate based on a permissive exception because of their parent-child bond. See Iowa Code § 232.116(3)(c) (permitting the court to decline to terminate when "[t]here is clear and convincing evidence that the termination would be detrimental to the child at the time due to the closeness of the parent-child relationship"). But "[a]ny bond that exists between [the father] and the child in this case is limited considering the child's young age and the time he has spent out of [his] care." In re D.S., 806 N.W.2d 458, 475 (Iowa Ct. App. 2011). In fact, the father had no interaction with his son for eight months by his own choice. Even the length of time where the father's incarceration served as a communication barrier is not an excuse. See B.H.A., 938 N.W.2d at 234 (finding "that '[a parent] cannot use his incarceration as a justification for his lack of relationship with the child.'" (alteration in original) (citation omitted)). In his father's absence, K.R. developed a bond to his foster family, especially his foster brother. See In re M.W., 876 N.W.2d 212, 225 (Iowa 2016) (concluding the child's integration into the foster placement supports termination). For these reasons, we decline to exercise a permissive exception based on this factor.
IV. Disposition.
We find the statutory grounds for termination are satisfied for the father and that the best interests of the child support termination. Further, we decline to exercise any exceptions to termination, and so we affirm.
AFFIRMED.